# United States **Court of Appeals**  **for the Federal Circuit**

______________________

CLEARCORRECT OPERATI NG, LLC, CLEARCORRECT PAKISTA N (PRIVATE), LTD., Appellants

v.

INTERNATIONAL TRADE COMMISSION, Appellee

ALIGN TECHNOLOGY, IN C., Intervenor

______________________

2014

- 1527

______________________ Appeal from the United States International Trade Commission in Investigation No. 337

- TA

- 833.

______________________

ON PETITION S FOR REHEAR ING EN BANC

______________________

M ICHAEL D. M YERS , McClanahan Myers Espey, LLP

 ̧ Houston, TX, for appellants. Also represented by R OBERT H ENRY E SPEY II; G ARY H NATH , P AUL W HITFIELD H UGHES , Mayer Brown LLP, Washington, DC.

S IDNEY A. R OSENZWEIG , Office of the General Counsel, United States International Trade Commission, Washin gton, DC, for appellee. Also represented by W AYNE W. H ERRINGTON , D OMINIC L. B IANCHI

.CLEARCORRECT OPERATING , LLC v. ITC 2

S TEPHEN B LAKE K INNAIRD , Paul Hastings LLP, Was hington, DC, for intervenor. Also rep resented by T HOMAS A. C OUNTS , I GOR V ICTOR T IMOFEYEV

.

S TEVEN M ETALITZ , Mitchell, Silberberg & Knupp, LLP, Washington, DC, for amicus curiae Association of American Publishers.

J ONATHAN J. E NGLER , Adduci, Mastriani & Schau mberg, LLP, Washington, DC, for am ici curiae Motion Picture Association of America, Recording Industry Ass ociation of America. Also represented by T HOMAS R ICHARD B URNS , J R ., T OM M. S CHAUMBERG

.

G EOFFREY A. M ANNE , International Center for Law & Economics, Portland, OR, for amicus curiae International Center for Law & Economics.

E RIC J AY F UES , Finnegan, Henderson, Farabow, Ga rrett & Dunner, LLP, Washington, DC, for amicus curiae International Trade Commission Trial Lawyers Associ ation. Also represented by M ATTHEW B ATHON , C HARLES F. S CHILL , Steptoe & Johnson, LLP, Washington, DC; S ARAH E. H AMBLIN , Adduci, Mastriani & Schaumberg, LLP, Washington, DC; G OUTAM P ATNAIK , G WENDOLYN T AWRESEY , Pepper Hamilton LLP, Washington, DC.

______________________

Before P ROST , Chief Judge

, N EWMAN , L OURIE , D YK , M OORE , O’M ALLEY , R EYNA , W ALLACH , T ARANTO , C HEN , H UGHES , and S TOLL , Circuit Judges

. P ROST , Chief Judge, and O’M ALLEY , Circuit Judge

, with whom W ALLACH , Circuit Judge, joins , concur in the denial of the petition s for rehearing en banc

. N EWMAN , Circuit Judge

, dissents from the denial of the petitions for rehearing en banc

.CLEARCORRECT OPERATI NG , LLC v. ITC 3

P ER C URIAM

. O R D E R
Appellee International Trade Commission and i nte rvenor Align Technology, Inc. each filed separate petitions for rehearing en banc. A response to the petition s was invited by the court and filed by the a ppellants ClearCo rrect Operating, LLC and ClearCorrect Pakistan (Private), Ltd. Several motions for leave to file amici curiae briefs

were also filed and granted by the court.
The petition s, response , and briefs of amici curiae

were referred to the panel th at heard the appeal, and thereafter were referred to the circuit judges who are in regular active service. A poll was requested, taken, and failed.
Upon consideration thereof,

I T I S O RDERED T HAT : The petition s for rehearing en banc are denied.

The mandate of the court will be issued on April 7, 2016.

F OR THE C OURT

March 31, 2016 /s/ Daniel E. O’Toole Date Daniel E. O’Toole Clerk of Court

# United States **Court of Appeals**  **for the Federal Circuit**

______________________

CLEARCORRECT OPERATI NG, LLC, CLEARCORRECT PAKISTA N (PRIVATE), LTD., Appellants

v.

INTERNATIONAL TRADE COMMISSION, Appellee

ALIGN TECHNOLOGY, IN C., Intervenor

______________________

2014

- 1527

______________________ Appeal from the United States International Trade Commission in Investigation No. 337

- TA

- 833.

______________________

P ROST , Chief Judge

, and O’M ALLEY , Circuit Judge

, with

whom Circuit Judge W ALLACH joins, concurring in the denial of rehearing en banc

. We concur in the court’s denial of the petition s for r ehearing en banc. We write briefly only to address certain points newly raised by the dissent, none of which support its incorrect interpretation of the statute.
First, the dissent cites a hodgepodge of other legisl ative enactments : a Customs Bureau duty statute, theCLEARCORRECT OPERATI NG , LLC v. ITC 2

Trade Act of 1974, the Arms Export Control Act of 1976, the Bipartisan Congressional Trade Priorities and A ccountability Act of 2015, and the Omnibus Trade and Competitiveness Act of 1998. Dissent at 8

– 12. The dissent’s view is that these la ws illustrate Congress’s intent to account for the advent of things like digital data and electronic transmissions. But these wholly separate statutory regimes have no bearing on Congressional intent regarding Section 337; what Congress has chosen to do in connection with a completely different statute is of little relevance here

. 1 And even if we were to accept their relevance to this case , they would prove the opposite

1 For example, the cited decisions by the Court of International Trade and the Department of Labor , which interpret the Trade Act of 1974

, have nothing to do with Section 337

. Dissent at 8–9

. The Trade Act of 1974 was enacted to provide assistance to domestic producers of “articles” whos e jobs were being moved abroad. The meaning of the word “article” in this worker

- protection context is irrelevant to the question of the ITC’s jurisdi ction to regulate importation of articles that infringe U.S. patents . Likewise, there can be no question that the cited district court decision interpreting the word “defense articles” in the Arms Export Control Act of 1976 has no bearing on this case. Id. at 9

– 10. Unlike here, the word “defense articles” in the arms context is expressly defined as including “any item or technical data.” 22 C.F.R. § 120.6. And the cited decision of the Customs Bureau was about whether software is merchandise that is stat utorily subject to import duties. D issent at 8 . That dec ision has nothing to do with Section 337’s regulation of imported articles that infringe U.S. patents; indeed, the Customs Bureau’s tasks do not even include making determinations regarding importation of infringing art icles

.CLEARCORRECT OPERATI NG , LLC v. ITC 3

of the dissent’s point

— namely, that when Congress wanted to bridge the gap between the non

- digital world and the digital world , it did so affirmatively. Congress’s failure to do so here supports the conclusion drawn by the panel majority, not the dissent. Moreover, the dissent is wrong to suggest that it falls on us to change the law i n order to address changing times. Id. at 6 –7. Any action on that front must be taken by Congress, not us. Sony Corp. of Am. v. Universal City Studios, Inc. , 464 U.S. 417, 430

– 31 (1984) (“[A]s new developments have occurred in this country, it has been the Congress that has fashioned the new rules that technology made necessary.”); see also Kimble v. Marvel Entm’ t, LLC , 135 S. Ct. 2401, 2414 (2015) (“[T] he choice of what patent policy should be lies first and foremost with Congress. ”)

. The dissent also notes that “ Section 337 does not d epend on the mode of importation; it depends on whether the imported good infringes a patent or copyright or trade mark or design.” Dissent at 3. The fact that som ething might infringe a U.S. patent is separate from th e question of whether it is an “ article. ” Both of these sep arate statutory requirements must be met in order for the ITC to exercise jurisdiction. 19 U.S.C. § 1337.
Finally, the dissent lists thirty definitions of “article ,” each having varying degrees of specificity. Dissent at 16 n.2 . While the disse nt posits that “[a]ll the definitions define ‘article’ as distinguishing an item from its class as a whole,” id. at 1 6, only a handful of its cited definitions actually do so. And in any event, none of the dissent’ s definitions are in consistent with defining “article” as a “material thing.” Thus, even with all the definitions brought in at this late stage, the dissent fails to support its overbroad interpretation.

The panel majority was correct in interpreting the word “articles” in Section 337 to mean “material things.” That interpretation is the one that is mandated by theCLEARCORRECT OPERATI NG , LLC v. ITC 4

plain meaning of the word, the context of 19 U.S.C. § 1337(a) and the entire statutory scheme, and the legi slative history. This court is correct to deny en banc r eview.

# United States **Court of Appeals**  **for the Federal Circuit**

______________________

CLEARCORRECT OPERATI NG, LLC, CLEARCORRECT PAKISTA N (PRIVATE), LTD., Appellants

v.

INTERNATIONAL TRADE COMMISSION, Appellee

ALIGN TECHNOLOGY, IN C., Intervenor

______________________

2014

- 1527

______________________ Appeal from the United States International Trade Commission in Investigation No. 337

- TA

- 833.

______________________

N EWMAN , C ircuit Judge

, dissenting from denial of rehea ring en banc.

Section 337 of the Tariff Act , 19 U.S.C. § 1337, a utho r izes the International Trade Commission to exclude imports that infringe a United States patent, copyright, trademark, mask work, or design. The Commission requests re hearing en banc of the court’s ruling that infringing d igital goods that are imported electronically are not subject to exclusion under Section 337 of the Tariff Act

. F laws in this ruling we re pointed out at ClearCorrect, Inc. v. Int’l. Trade Comm’n

, 810 F.3d 1283, 1304CLEARCORRECT OPERATI NG , LLC v. ITC 2

(Fed. Cir. 2015) (Newman, J.

, dissenting). I write to elaborate on the conflicts that have been created, and to consider the concerns raised by amici curia e. 1

T he court’s decision is inconsistent with decisions of the Supreme Court, the Federal Circuit, the Court of Customs and Patent Appeals, th e Court of International Trade, the Tariff Commission, the Department of Labor, the Bureau of Customs and Border Protection, the Arms Control Export Act, and th e Bipartisan Congressional Trade Priorities and Accountability Act. I respectfully dissent

. D ISCUSSION

Th is court now holds that the Commission has no “j urisdiction” to exclude infringing digital goods that are imported electronically. The court’s remova l of this jurisdiction conflicts with our recent decision in Suprema, Inc. v. International Trade Commission , 796 F.3d 1338, 1350 (Fed. Cir. 2015) (en banc), wherein th e court rea ffirmed that “t he legislative history [of Section 337] co nsistently evidences Congressional intent to vest the Commission with broad enforcement authority to remedy unfair trade acts.” This conflict requires resolution.

The court now holds that the word “article” in Section 337 of the Tariff Act cannot include digital goods , al tho ugh “article” is the general term used throughout j udicial and agency rulings for goods in trade, including digital goods. Digital goods are included in the tariff

1 Amicus briefs supporting rehearing were filed by the International Trade Commission Trial Lawyers Association, the International Center for Law and Ec onomics, the Motion Picture Association of America and the Recording Industry Association of America, and the As sociation of American Publishers

.CLEARCORRECT OPERATI NG , LLC v. ITC 3

laws ; they are imported

, bought

, and sold ; they are su bject to the patent laws, and have be en the subject of many infringement suits

. I nfringement does not depend on whether the digital goods are carried on a hard substrate, or electronically.
Section 337 does not depend on the mode of import ation ; it depends on whether the imported good s infringe a patent or copyright or trademark or design. T he am ici curiae point out the consequences of the court’s change of law, for infringing imports of books, motion pictures, and other products subject to transmission in digital form

. The disruption that this ruling is already causing wa rrants en banc attention.

I
Section 337 does not distinguish between i nfringing goods imported electronically and infringing goods imported on a physical m edium

The International Trade Commission applied Section 337 to ClearCorrect’s “digital models, digital data, and digital information, ” produced by ClearCorrect’s Pakistan i affiliate and transmitted in to the United States via the Internet ; the Commission found that the patents of the complainant Align Technology were valid, and infringed by the imported digital goods. On appeal, this court held that Section 337 of the Tariff Act of 1930 does not include digital goods that are electronically imported. Ho wever, Section 337 is not so limited. The statue provides:
19 U.S.C. § 1337. Unfair practices in import trade
(a) Unlawful activities ; covered industries; definitions.
(1) Subject to paragraph (2), the following are u nlawful

. . . .CLEARCORRECT OPERATI NG , LLC v. ITC 4

***
(B) The importat ion into the United States, the sale for importation, or the sale within the United States after importation by the owner, importer, or consignee, of articles that — (i) infringe a valid and enforceable United States patent or a valid and enforceable United States copyright registered under Title 17, United States Code, or (ii) are made, produced, processed, or mined under, or by means of, a process covered by the claims of a valid and enforceable United States patent.

***
(2) Subparagraphs (B), (C), (D), and (E) of par agraph (1) apply only if an industry in the United State s, relating to the articles protected by the p atent, copyright, trademark, mask work, or design concerned, exists or is in the process of being e stab lished

. ***

Section 337 was first enacted in 1922 , to aid in protecti ng domestic industry against unfair competition from goods imported into the United States. The Senate Report
states the purpose : The provision relating to unfair methods of co mpetition in the importation of goods is broad enough to prevent every type and form of unfair practice and is, therefore, a more adequate prote ction to American industry than any antidumping statute the country has ever had.CLEARCORRECT OPERATI NG , LLC v. ITC 5

S. R EP

. N O . 67

- 595

, at 3 (1922)

. At the compla int of patentee Align Technologies, the Commission conducted an investigation, reported at Certain Digital Models, Digital Data, & Treatment Plans for Use in Making Incremental Dental Positioning A djustment Appliances, the Appliances Made Therefrom, & Meth ods of Making the Same , Inv. No. 337

- TA

- 833 (Co mmission Opinion, April 10, 2014)

. The Commission found the Align patents valid and infringed, and issued a Cease and Desist Order against
importing (including through electronic transmi ssion) the digital models, digital data, and orth odontic plans that were found to infringe the Align patents. Order (April 3, 2014)

. On appeal , t he Federal Circuit reversed the Order, reported at ClearCorrect Operating, LLC v. Int ’ l Trade Comm ’n , 810 F.3d 1283 (Fed. Cir. 2015) . This reversal has produced many conflicts and

concerns , warranting en banc rehearing.
The court’s ruling today is the first import distinction depending on the carrier by which the infringing goods are imported.

II

P recedent is uniformly at odds with this court’s position
Our predecessor Court of Customs and Patent A ppeals, whose precedent binds the Federal Circuit, reco gnized the purpose of Section 337 “to give to industries of the United States, not only the benefit of the favorable law s and conditions to be found in this country, but also to protect such industries from being unfairly deprived of the advantage of the same and permit them to grow and develop.” Frischer & Co. v. Bakelite Corp. , 39 F.2d 247, 259 (CCPA 1930). Over the dec ades, the InternationalCLEARCORRECT OPERATI NG , LLC v. ITC 6

Trade Commission and the CCPA implemented Section 337 “to provide an adequate remedy for domestic indu stries against unfair methods of competition and unfair acts initiated by foreign concerns operating beyond the in

personam jurisd iction of domestic courts .” Sealed Air Corp. v. Int’l Trade Comm’n , 645 F.2d 976, 985 (CCPA 1981). The Federal Circuit continued this purpose, sta ting in Lannom M anufacturing Co. v. Int ernational Trade Comm ission

, 799 F.2d 1572 (Fed. Cir. 1986), that “th e purpose of S ection 337 from its inception was to provide relief to United States industry from unfair acts, inclu ding infringement of United States patents by goods man ufactured abroad.” Id. at 1580.

The Supreme C ourt counsels that statuto ry law should be adapted to its legislat ive purpose , in the context of advances in technology. In Fortnightly Corp. v. United Artists Television, Inc. , 392 U.S. 390 (1968), the Court considered “a statute that was drafted long before the development of the electronic p henomena with which we deal here,” stating that “[w]e must read the statutory language

. . . in the light of drastic technological change.” Id. at 395

– 96.

The Court observed in Twentieth Century Music Corp. v. Aiken, 422 U.S

. 151 (1975), that although Congress did not revise the Copyright Act of 1909 following the advent of radio (and television), “ copyright law was quick to adapt to prevent the exploitation of protected works through the new electronic technology.” Id . at 15 8. The Court observed the “ultimate aim” of the copyright law “to stimulate artistic creativity for the general public good,” and stated that “[w]hen technological change has re ndered its literal terms ambiguous, the Copyright Act must be construed in light of this basic purpose.” Id. at 156.
The patent laws are not limited to the technologies that existed when the Patent Act of 1952 (or any other patent statute) was enacted. And Section 337 is notCLEARCORRECT OPERATI NG , LLC v. ITC 7

limited to the technolog y of 1930

. Computer-implemented digital technology was considered by the Court in Di amond v. Diehr

, 450 U.S. 175 (19 81 ) ; and in D iamond v. Chakrabarty

, 447 U.S. 303 (1980), the Court con sidered whether the Patent Act included m an

- made biologic products

— although neither technology easily fit s the words of any patent statute.

It is now beyond debate that digital goods are subject to the patent law, and it is bey o nd debate that digital goods can be imported; yet th is court holds that infringing digital goods are not subject to the Tariff Ac t if imported electronically. The court’s ruling not only defies the Court’s principles, but conflicts with our own precedent, including Supre ma , supra

. In Lucent Tech nologie s, Inc. v. Gateway, Inc ., 580 F.3d 1301, 1321 (Fed. Cir. 2009), this
court reject ed the argument that digital goods such as computer software are not a “material or apparatus” and therefore not liable for contributory infringement

. The Commission’s ruling in this case is not its first exclusion of infringing digital goods. In Certain Hardware Logic Emulation Systems , Inv. No. 337

- TA

- 383, USITC Pub. 3089 (March 1, 1998) the Commission held that “[h]aving found that respondents’ software contributorily infringes the claims in issue, we are of the view that our remedial orders must reach that software .” Id. at 18. In Hardware Logic t he Commission stated that “it would be anomalous for the Commission to be able to stop the transfer of a CD

- ROM or diskette containing respondents’ software, but not be able to stop the transfer of that very same software when transmitted in machine readable form by electronic means.” Id

. at 29. Section 337 does not determine infringement; its pu rpose is to regulate unfair competition by infringing i mports . The carrier by which the infringing imports arrive in the United States is irrelevant. Contrary to this court’s

p rop osition, i t is not “regulation of the Internet” to e x-CLEARCORRECT OPERATI NG , LLC v. ITC 8

clude infringing digital goods. As the amici curiae point out, this court’s ruling has consequences beyond patent infringement, warranti ng our reconsideration.

The rulings of the International Trade Co mmission comport with the rulings of the B ureau of Customs and Border Protection
The Customs Bureau held in HQ 114459 (Sept. 17, 1998):

We further find that the transmission of software modules and products to the United States from a foreign country via the Internet is an importation of merchandise into the customs territory of the United States

. . . . The Customs ruling stated: “The fac t that the importation of the merchandise via the Internet is not effected by a

more ‘ traditional vehicle ’ (e.g., transported on a vessel) does not influence our determination.” Id. at 2.

It is established that digital products are “goods” and “merchandis e” and that their transmission via the Inte rnet is an importation in to the United States

. It is esta blished that digital goods are subject to the patent law. No authority has held that infringing digital goods that are imported electronically are not sub ject to the laws of in fringement or of importation.

The Court of International Trade re ached the same conclusion

The Trade Act of 1974 provides Trade Adjustment A ssistance “to workers involved in the production of an ‘article’ who lose their jobs due to increased competition from ‘foreign articles’ or due to the shifting of production abroad.” Former Employees of IBM Corp. v. Chao , 292 F. App ’ x 902, 904 (Fed. Cir. 2008).
The Court of International Trade, interpreting the word “article” in the Trade Act, explicitly rejected theCLEARCORRECT OPERATI NG , LLC v. ITC 9

argument that software is not an “ article ” unless embe dded i n a tangible medium. The c ourt stat ed , “ [t] he plain language of the Trade Act does not require that an article must be tangible

. ” Former Emps

. of Comput

. Scis. Corp. v. U.S. Sec ’ y of Labor , 30 C t. I nt’l . T rade 124, 130

– 131, 133 (2006)

. The Department of Labor r e ached the same conclusion
The Department of Labor, interpreting the Tra de Act for purposes of Trade Adjustment Assistance, stated that “[s] oftware and similar intangible goods that would have been considered articles, for the purposes of the Trade Act, if embodied in a physical medium will now be consi dered to be articles regardless of their method of transfer .” IBM Corporation Global Services Division, Piscataway, NJ; Middletown, NJ; Notice of Revised Determination on Remand , 71 FR 29183

- 01 (May 19, 2006).
The Arms Export Control A ct reached the same conclusion

T he Arms Export Control Act (originally enacted as the Foreign Military Sales Act in 1968) prohibits the sale or lease of a “defense article or defense service” unless certain criteria are met. Pub. L. 90

- 629, § 3(a), 82 Stat. 1320, 1322 (1968) (codified at 22 U.S.C. § 2753(a) ) . The President is authorized to “designate those items which shall be considered as defense articles and defense se rvices.” 22 U.S.C. § 2778(a)(1). The Secretary of State, acting by designation, defined “defense article” as “any item or t echnical data designated in § 121.1 of this su bchapter

. ” 22 C.F.R. § 120.6. “Technical data” is defined to include “[s] oftware

. . . directly related to defense articles ,” as well as “information in the form of blueprints, dra wings, photographs, plans, in structions or documentation.” 22 C.F.R. § 120.10(a)(1)

, (a)(4).CLEARCORRECT OPERATI NG , LLC v. ITC 10

Applying this statute to the posting to the Internet of digital plans for 3D printing of gun parts, the court in Defense Distributed v. U.S. Dep’t of State , 121 F. Supp. 3d 680 (W.D. Tex. 201 5) (currently on appeal)

, observed that digital information is within the meaning of “defense articles.”

The Omnibus Trade and C ompetitiveness Act of 1988 reached the same conclusion
In 1988 Congress reaffirmed the ITC ’s authority for unfair competition due to imports that infringe patents and copyrights. Omnibus Trade and Competitiveness Act of 1988, Pub. L. No. 100

- 418 , § 1342(a), 102 Stat. 11 0 7, 121 2. The Senate Report explained:
As indicated by the scope of its lang uage, section 337 was intended to cover a broad range of unfair acts not then covered by other unfair import laws. However, over the years, patent, copyright, and trademark infringement were recognized as u nfair trade practices within the meaning of secti on 337, and today section 337 is predominantly used to enforce U.S. intellectual property rights.

S. R EP

. N O . 100

- 71

, at 130 (1987). The Omnibus Trade Act reiterated the purpose to provide “a more effective remedy for the protection of United States intel lectual property rights” through exclusion of infringing imports. Omnibus Trade and Competitiveness Act

, supra , § 1341(b), 102 Stat. at 121 2. This statute reinforced reliance on Section 337 to exclude infringing imports.

The Trade Priorities and Accounta bility Act of 2015 reached the same conclusion
In recent trade negotiations, Congress again rejected a distinction between digital goods and the means by which they are transported. The Bipartisan Congressio nal Trade Priorities and Accountability Act of 2015 covers “digital trade in goods and services” and states that “[t]heCLEARCORRECT OPERATI NG , LLC v. ITC 11

principal negotiating objectives of the United States . . . are . . . to ensure that electronically delivered goods and services receive no less favorable treatment under trade rules and commitments than like products delivered in physical form

. ” Pub L. No. 114

- 26, § 102(a)(6), (a)(6)(B)(i), 129 Stat. 320, 325 (2015).
If digital imports were intended to be excluded from Section 337, a statutory change could have been made at least by the Omnibus Trade and Competitiveness Act of 1988 , for the digital world was burgeoning. By 1988

, copyright infringement was well understood to include electronic transmission s; f or example, d uring conside r ation of the Copyright Act of 1976, the House Report sta ted:
The corresponding definition of “display” covers any showing of a “copy” of the work, “either direc tly or by means of a film, slide, television image, or any other device or process.” . . . In addition to the direct showings of a copy of a work, “display” would include the projection of an image on a screen or other surface by any method, the tran smission of an image by electronic or other means

.

. . . H.R. R EP

. N O . 94

- 1476, at 64 (1976); see i d. at 80 (“Unless [excused under some other provision of the Copyright Act] . . . transmission of an image to the public over television or other communication channels, would be an infring ement for the same reasons that reproduction in copies would be.”).
Congress would not have implicitly exclude d known aspects of copyright law when it enacted the Omnibus Trade and Competitiveness Act of 1988 without some statement to that effect. “ Congress . . . does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions

— it does not, one might say, hide elephants in mouseholes. ” Whitman v. Am. TruckingCLEARCORRECT OPERATI NG , LLC v. ITC 12

Ass’n s , 531 U.S. 457, 468 (2001). It defies logic to su ggest that Congress intended or understood that Section 337, as amended in 1988, would not address all forms of copyright infringement and would exclude electronic transmissions.

The amici curiae concerned with copyright state their concern that this court ’s casual elimination of remedy for Section 337 infringement by goods imported by electronic transmission will have a powerful impact on the import ation of books and other publications, as well as on infrin ging digital imports of motion pictures a nd other copyrighted material.

III
This entire body of interpretation shows the

u nderstanding that “article” is not limited to classical technology
The Customs Court, now the Court of International Trade, explained that “the word ‘article’ is itself a neb ulous concept seemingly employed in the Tariff Act for the very reason that it possesses an indefinite and neutral meaning.” Close & Stewart v. United States, 268 F. Supp. 466, 468

– 69 (Cust. Ct. 1967).

Definitions of “article” in the trade context show the word “article” as a general term for things that are i mported

. “T he word ‘articles ’ when used in a tariff law should be given a broad, liberal meaning . . . .” G. Hirsch ’ s Sons v. United States, 1 67 F. 309, 311 (2d Cir. 1909).

The Court of Customs and P atent Appeals explained that “the word ‘ articles ’ is used hundreds of times in most tariff statutes; that Congress clearly meant it to have a broad meaning in some provisions and a restricted mea ning in others; and that it has meanings varying with the

pur poses to be accomplished.” D N & E Walter & Co v. U

nited S tates , 44 CCPA 144, 147 (1957) . The CCPA stated in United States v. A. Johnson & Co., 588 F.2d 297,CLEARCORRECT OPERATI NG , LLC v. ITC 13

300 (CCPA 1978)

, that : “In some instances it [‘ article ’ ] is used as a synonym for ‘ thing ’ and embraces any import ation, and in other contexts it takes on a narrower mea ning .”

Section 337 does not define “article ,” but other se ctions of th e same Tariff Act include an express definition

. In Chevron, U.S.A., Inc. v. Nat ural Res ources Defense Cou ncil, Inc. , 467 U.S. 837, 860 (1984) the C ourt looked to an express definition in another section of the same statute for guidance on the meaning of an undefined term

, stating : “ Although the definition in that section is not literally applicable to the permit program, it sheds as much light on the meaning of the word ‘ source ’ as an ything in the statute. ” Id. It is highly relevant that Se ction 332 of the Tariff Act of 1930 states : “The term ‘article’ includes any commodity, whether grown, produced, fabr icated, manipulated, or manufactured.” This text also appears in the Tariff Act of 1922, section 318(b)

. The Court of Customs and Patent Appeals in 1940, citing Webster’s New Inter national Dictionary, explained that, in the Tariff Act of 1930, “Congress said: ‘and paid upon all articles when imported from any foreign country.’ Unquestionably, Congress meant, by employing that language, to include under the word ‘articles’ any provi ded- for substance, material or thing of whatever kind or character that was imported into this country.” United States v. Eimer & Amend , 28 CCPA 10, 12 (1940).
The Supreme Court , in a case to recover duties paid under protest under an earlier tariff statu te
, stated, “[i]n common usage, ‘article’ is applied to almost every sep arate substance or material, whether as a member of a class, or as a particular substance or commodity.” Junge v. Hedden , 146 U.S. 233, 238 (1892). The Court, revie wing the variety o f uses of the word “article” in the tariff statutes, concluded “[w]e agree with the circuit court that the word must be taken comprehensively

. ” Id. at 239.CLEARCORRECT OPERATI NG , LLC v. ITC 14

The Dictionary of Tariff Information, produced by the Tariff Commission (now the International Trade Commi ssion) , states that “ [t] he word ‘article’ as ordinarily used in tariff acts embraces commodities generally , whether manufactured wholly or in part or not at all.” Articles

, D ICTIONARY OF T ARIFF I NFORMATION ( 1924) (emphas is added). The same dictionary also states that narrower meanings must arise from context, not from the use of “articles” itself: “The restricted use of the word ‘article’ has been recognized by the courts and the rule laid down that where an intention ap pears from the text of the law to give the word ‘article’ a narrower meaning than it ordinarily has, such meaning shall be applied in the administration of the law.” Id.

The C ommission correctly construed the word “articles”
The Commission stated that “the statutory constru ction of ‘articles’ that hews most closely to the language of the statute and implements the avowed Congressional purpose for Section 337 encompasses within its scope the electronic transmission of the digital data sets at issue in th is investigation.” Comm’n Op. at 36. The Commission concluded that “articles” encompassed all “articles of commerce.” The Court defined “articles of commerce” to include pure information, holding in Reno v. Condon , 528 U.S. 141 (2000), that the Commerce Clause applies to interstate transmission of information in motor vehicle records sold or released “into the interstate stream of business.” Id . at 148.
Digital goods did not exist in 1922 and 1930. N othing in the statute shows an intent to omit later -discovered technologies from Section 337. It cannot have been the legislative intent to lock the statute into antiquity. U nless explicitly provided, statutes are not limited to the circumstances at the time of enactment. See Diamond v. Chakrabarty , 447 U.S. at 315 (“This Court frequently hasCLEARCORRECT OPERATI NG , LLC v. ITC 15

observed that a statute is not to be confined to the ‘parti cular application[s] . . . contemplated by the legislators.’”). Section 337 was written in broad terms, with no excl usions; the Commission reasonably conclud ed that Co ngress did not intend to exclude new fields of technology, and inventions not yet made, from a statute whose pu rpose is to support invention.
Although digital goods, electronically imported, are not mentioned in the dictionaries of the 1920s, no reason has been shown to exclude them from the “ articles ” of Section 337. The Commission reasonably and correctly defined “articles” in Section 337 as encompassing all articles of commerce, including digital goods and electro nic commerce.

Th is court’s reversal of the Commission based on select ions from chosen dictionar ies cannot be supported

The words and text of the Tariff Act show that Section 337 is directed to unfair trade practices in importation of articles infringing patents, copyrights, trademar ks, mask works, and designs. Nothing in any provision of the Tariff Act suggests an intention to limit “articles” to goods that can be viewed with the human eye or held in the human hand. Digital goods readily fit the purpose a nd the text of the Tariff A ct.

The Commission justly criticize s this court’s selection of dictionaries. We undertook to survey the dictionaries of the era, and found forty

- five dictionaries in the Library of Congress published between 1900 and 1930 , most with multiple definitions o f “article .” We found twenty

- five different entries for the noun form of “article” and thirtyCLEARCORRECT OPERATI NG , LLC v. ITC 16

different definitions that could apply to the use of the word “article” in S ection 337. 2

All the definitions define “article” as distinguishing an item from its class as a whole. As expected, the defin itions are generally similar ; some are nearly identical

. F ive of the thirty unique definitions u se the word “mat erial” or something similar

. Three use the phrase “mater ial thing.” Nine use the word “thing,” but not “material.” Three use the phrase “particular thing.” Six use the word “commodity.” Six use the word “substance.” Three use

2 The thirty definitions are: “a particular thing ”; “a separate portion of a material thing ”; “a ny particular commodity or material substance (most frequently used of things manufactured, or of things exposed for sale.) ”; “ a distinct portion or member ”; “a material thing, as one of a class ”; “an item ”; “an individual piece or thing of a class (as, an article of food or of dress) ”; “a thing, indefinitely (as, what is that article? ) ”; “a commodity ”; “a distinct part. Upon each article of human duty) ”; “a particular commo dity, or substance; as, an article of merchandise; salt is a

necessary article

, in common usage, this word is applied to almost every separate substance or material ”; “a pa rticular object or substance ”; “a material thing or class of things; as, an article of food ”; “something considered by itself and as apart from other things of the same kind or from the whole of which it forms a part ”; “a thing of a particular class or kind, as distinct from a thing of ano t her class or kind ”; “a separate item ”; “a particular commo dity”; “particular thing, as the next a [rticle] ”; “a particular substance ”; “ a particular thing or class of things ”; “a distinct part ”; “a particular commodity or substance ”; “Separate element or part ”; “Something considered by itself ”; “a thing of a particular class or kind ”; “A separate element, member, or part of anything ”; “A distinct part or particular ”; “Item”; “a substance or commodity ”; “a thing.”CLEARCORRECT OPERATI NG , LLC v. ITC 17

the word “item.” Twelve use the adjective “particular” as

pa rt of the definition. A unifying theme of all the defin itions is that “article” refers to one of a class of things, and that the nature of the class is defined by conte xt, not by the word “article.”
In Section 337(a) t he only words modifying “article”

are “importation” (“importation of articles”), “sale” (“sale of such articles”) and “infringe” (“articles that

— infringe”). None of these words mandates a gross materiality that would eliminate digital goods. In Section 337 the word “articles” is unlimited in any manner that might suggest a narrower meaning , on the customary canons of ejusdem generis or noscitur a sociis

. We can find no suggestion in the text or context that Congress intended the word “article” to limit Section 337 to goods or technology th at existed in 1930.

“ After all, what word other than ‘ articles ’ could Co ngress have used if it did want to include intangible things within the scope of the Act? ” Amicus brief of Int’l. Ctr. for Law and Econ. at 4. A common sense reading of Section 337 , a long with the other statutes and regulations repor ted supra , shows the intended breadth of these infring ement/importation statutes.

The statutory au th orizat i on of the cease

- and

desist order in 1975 does not mean that dig ital goods are excluded from Section 337

The court states that the word “article” cannot include digital goods because the Tariff Act’s remedies in 1930 were limited to exclusion orders

. In 1975, Congress amended the Tariff Act to add the remed y of the cease

and

- desist order for infringing imports

. The Senate Report states:
It is clear to your committee that the existing statute, which provides no remedy other than e xclusion of articles from entry, is so extreme or i n-CLEARCORRECT OPERATI NG , LLC v. ITC 18

appropriate in some cases that it is often likely to result in the Commiss ion not finding a violation of this section, thus reducing the effectiveness of se ction 337 for the purposes intended.
S. Rep 93

- 1298 (1974)

, reprinted in 1974 U.S.C.C.A.N. 7186, 7331. The Report state s that “ [t] he power to issue cease and desist orders would add needed flexibility.” Id. The Report states that “[n]o change has been made in the substance of the jurisdiction conferred under Section 337(a) with respect to unfair methods of competition or unfair acts in the import trade.” Id. at 7327.

Even if it were not practicable to remedy digital i mportation using the technology of 1930, this cannot mean that digital importation by I nternet is immune from the Commission’s cease

- and

- desist authori ty.

I

nfringement does not vary with the carrier into the United States
By its terms, Section 337 is limited to infringing i mports. Imports “are the articles themselves which are brought into the country.” Brown v. State of Maryland , 25 U.S. 419 , 437 (1827). Section 337 prohibits “ import ation . . . of articles that

— infringe.” T he mode of importation , or whether the article passes through a C ustoms port of entry
, does not matter. The Supreme Court has made this clear : Importation . . . consists in bringing an article into a country from the outside. If there be an actual bringing in it is importation regardless of the mode in which it is effected. Entry through a cu stoms house is not of the essence of the act.

Cunard S.S. Co. v. Mellon , 262 U.S. 100, 122 (1923).
Without doubt, electronically transmitted goods are imported goods, whether or not exempt from import duties

. S ee General Note 3(e) (ii) , HTSUS (2015) (Rev. 1)CLEARCORRECT OPERATI NG , LLC v. ITC 19

(exempting telecommu nication transmission s from im port duties ) ; s ee also Former Emp s. , 30 C t. I nt’l . Tr. at 131 (“ General Note 3(e) supports the conclusion that teleco mmunications transmissions, which would include tran smissions of software code via the Internet, are exempt from duty while acknowledging that they are goods ente ring into the customs boundaries of the United States.”)

. The Customs agency agrees

. See HQ 114459 (Sept. 17, 1998) (“We further find that the transmission of software modules and products to the United States from a foreign
count ry via the Internet is an importation of merchandise into the customs territory of the United States”).
Section 337 does not concern the imposition of duties for imported software code; it concerns whether infringing digital goods may be imported in violat ion of valid patents

or other property rights. This c a se is about international
t rade, not I nternet regulation.
If there were doubt about the correct interpretation of Section 337, the Commiss ion’s reasonable interpretation requires deference
It is not disputed that the digital data sets and digital models for teeth alignment, produced in Pakistan and imported into the United States, infringe the patents of Align Technology. If this court remains uncertain as to the meaning of Section 337

, the Commission’s well

reasoned interpretation is entitled to judicial deference. “[I]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the

agency ’ s answer is based on a permissible construction of the statute.” Chevron U.S.A. Inc. v. Nat. Res. Def. Cou ncil, Inc., 467 U.S. 837, 843 (1984).
A permissible construction is one that is “rational and consistent with the statute.” Sullivan v. Everhart , 494 U.S. 83, 88

- 89 (1990) (quoting N.L.R.B. v. United Food & Commercial Workers Union, Local 23, AFL

- CIO , 484 U.S. 112, 123 (1987)). “If the agency interpretation is not inCLEARCORRECT OPERATI NG , LLC v. ITC 20

conflict with the plain language of the statute, deference is due.” Nat’l R.R. Passenger Corp. v. Boston & Maine Corp. , 503 U.S. 407, 417 (1992).
The obligation of deference to the Commission’s re asonable statutory interpretation has been recognized by the Federal Circuit. E.g., TianRui Grp. Co. v. Int’l Trade Comm’n , 661 F.3d 1322, 1332 (Fed. Cir. 2011) (“We have held that the Commissi on’s reasonable interpretations of section 337 are entitled to deference.”); Kinik Co. v. Int’l Trade Comm’n , 362 F.3d 1359, 1363 (Fed. Cir. 2004) (“To the extent that there is any uncertainty or ambiguity in the interpretation of § 337(a) and its successo r § 1337(a)(1)(B)(ii), deference must be given to the view of the agency that is charged with its administration.”); Enercon GmbH v. Int’l Trade Comm’n , 151 F.3d 1376, 1381 (Fed. Cir. 1998) (“As the agency charged with the administration of section 337, th e ITC is entitled to a ppropriate deference to its interpretation of the statute.”).
“Congress cannot, and need not, draft a statute which anticipates and provides for all possible circumstances in which a general policy must be applied to a specific set of facts. It properly leaves this task to the authorized age ncy.” Micron Tech., Inc. v. United States , 243 F.3d 1301, 1312 (Fed. Cir. 2001). To the extent that new technol ogies are involved in these infringing importations, defe rence is appropriate to the agency’s reasonable application of the statute it is charged to administer. See Nat’l Cable & Telecomms

. Ass’n, Inc. v. Gulf Power Co. , 534 U.S. 327, 339 (2002) (upholding agency interpretive authority where the statute involved “ technical, complex, and dynamic ” subject matter that “might be expected to evolve in directions Congress knew it could not anticipate.”).
The court offers no explanation, other than to dis agree with the Commission, and with every other authority that ha s interpreted any relevant aspect.CLEARCORRECT OPERATI NG , LLC v. ITC 21

Judicial rehearing is appropriate

This court limits the Tariff Act on the theory that Congress was unaware of digital goods in 1922 and 1930 ; but the Court “frequently has observed that a statute is not to be confined to the ‘particular application [s] . . . contemplated by the legislators.’” Chakrabarty

, 447 U.S. at 315 (quoting Barr v. United States , 324 U.S. 83, 90 (1945)). The Chakrabarty Court explicitly rejected the argument that because “genetic technology was unfor eseen when Congress enacte d § 101” the Court should restrict the statute and await action by Congress. Id. at 314. The Court invoked Marbury v. Madison , 1 Cranch 137, 177 (1803), stating that “once Congress has spoken it is ‘ the province and duty of the judicial department to say what the law is. ’ ” Id. at 315. The Court stated that “our obligation is to take statutes as we find them, guided, if ambiguity appears, by the legislative history and statut ory purpose.” Id

. The rehearing protocol allows a court to rethink its decision

. From my colleagues’ denial of the request s for rehearing en banc

, I respectfully dissent.